STATE OF NEW JERSEY VS. TERELL L. HUBBARD (16-01-0061, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4254-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERELL L. HUBBARD,
a/k/a RELL,

Defendant-Respondent.
__________________________

Submitted November 16, 2020 – Decided January 8, 2021

Before Judges Messano, Hoffman, and Suter.

On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 16-01-
0061.

Helmer, Conley & Kasselman, P.A., attorneys for
appellant (Jack J. Lipari, of counsel and on the brief).

Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Stephen C. Sayer,
Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant Terell L. Hubbard was tried on the third indictment returned

by a Cumberland County grand jury; the first two indictments were dismissed

by the State and superseded by subsequent grand jury presentations. The jury

convicted defendant of the lesser-included offenses of second-degree

manslaughter, N.J.S.A. 2C:11-4(b)(1), and simple assault, N.J.S.A. 2C:12-

1(a)(1), in the death of his five-month-old daughter, L.H., and acquitted

defendant of endangering L.H.'s welfare.1 The judge sentenced defendant to a

seven-year term of imprisonment, subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2.

Defendant raises the following points for our consideration:

POINT I

THE LOWER COURT ERRANTLY ADMITTED
DEFENDANT'S CUSTODIAL STATEMENTS INTO
EVIDENCE, IN VIOLATION OF THE FIFTH AND
FOURTEENTH AMENDMENTS OF THE UNITED
STATES CONSTITUTION, IN VIOLATION OF THE
PRINCIPLES OF THE "MIRANDA" CASE AND ITS
PROGENY, IN VIOLATION OF NEW JERSEY
STATE CONSTITUTIONAL AND COMMON LAW;
THESE STATEMENTS WERE INVOLUNTARY
AND SHOULD HAVE BEEN EXCLUDED FROM
THE TRIAL; THE ERRANT ADMISSION OF THESE
STATEMENTS REQUIRES REVERSAL. 2

1
We use initials of the child victim pursuant to Rule 1:38-3.
2
Miranda v. Arizona, 384 U.S. 436 (1966). We have omitted the subpoints of
this argument.
2 A-4254-17T3
POINT II

THE STATE ELICITED TESTIMONY IN
VIOLATION OF THE COURT'S ORDER
SUPPRESSING DEFENDANT'S STATEMENT OF
OCTOBER 20, 2008, VIOLATING THE
DEFENDANT'S CONSTITUTIONAL RIGHTS
AGAIN AND PREJUDICING HIS RIGHT TO FAIR
TRIAL. (NOT RAISED BELOW)

POINT III

THE CONVICTION MUST BE VACATED AND THE
INDICTMENT DISMISSED ON ACCOUNT OF
PROSECUTORIAL VINDICTIVENESS AND IN
VIOLATION OF DEFENDANT'S STATE AND
CONSTITUTIONAL RIGHTS OF DUE PROCESS
UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES
CONSTITU[T]ION AND ARTICLE I,
PARAGRAPHS ONE AND EIGHT OF THE NEW
JERSEY STATE CONSTITUTION, AS WELL AS IN
THE EXERCISE OF THE COURT'S SUPERVISORY
AUTHORITY. (NOT RAISED BELOW)

POINT IV

THE CONVICTION MUST BE VACATED AND THE
INDICTMENT DISMISSED ON ACCOUNT OF
MISCONDUCT AND IRREGULARITY IN THE
GRAND JURY PRESENTATION, AND VIOLATION
OF THE DEFENDANT'S RIGHT TO INDICTMENT
BY GRAND JURY UNDER CONSTITUTION AND
ARTICLE I, PARAGRAPH 8 OF THE NEW JERSEY
CONSTITUTION. (NOT RAISED BELOW)

3 A-4254-17T3
POINT V

THE LOWER COURT ERRED IN ITS RULING IN
LIMINE, INASMUCH AS IT INDICATED THAT IT
WOULD ALLOW BAD ACT EVIDENCE IF THE
DEFENDANT WERE TO TESTIFY THAT HIS
ACTIONS WERE ACCIDENTAL, AND THUS, IN
EFFECT, DENIED THE DEFENDANT THE RIGHT
TO PRESENT SUCH ACCIDENT AS A DEFENSE.

POINT VI

DEFENDANT IS ENTITLED TO A NEW TRIAL
BECAUSE THE JURY VERDICTS WERE
INCONSISTENT, THE VERDICT WAS NOT SO
SUFFICIENTLY SUPPORTED BY THE EVIDENCE
AS TO COMPENSATE FOR THE INCONSISTENCY,
AND THE REASON FOR THE INCONSISTENCY IS
FAIRLY ASCERTAINABLE; AND ALSO BECAUSE
THE VERDICT, IN ANY EVENT, WAS AGAINST
THE WEIGHT OF THE EVIDENCE.

POINT VII

THE LOWER COURT ERRED IN FAILING TO
OFFER SIMPLE ASSAULT SPECIFICALLY AS A
LESSER[-]INCLUDED OFFENSE WITHIN
AGGRAVATED MANSLAUGHTER AND
MANSLAUGHTER AND THE VERDICT SHEET
WAS MISLEADING. (NOT RAISED BELOW)

POINT VIII

THE TRIAL COURT ERRED IN PERMITTING
POLICE TESTIMONY THAT EVALUATED
CREDIBILITY AND IMPLIED GUILT.

4 A-4254-17T3
 POINT IX

THERE WAS PREJUDICIAL AND REVERSIBLE
ERROR IN TESTIMONY CONCERNING A
CLAVICLE FRACTURE. (NOT RAISED BELOW)

POINT X

CUMULATIVE ERROR RENDERED THE TRIAL
UNFAIR REQUIRING REVERSAL. (NOT RAISED
BELOW)

POINT XI

DEFENDANT WAS DEPRIVED OF EFFECTIVE
ASSISTANCE OF COUNSEL UNDER THE SIXTH
AMENDMENT OF THE UNITED STATES
CONSTITUTION AND ARTICLE I, PARAGRAPH 10
OF THE NEW JERSEY STATE CONSTITUTION.
(NOT RAISED BELOW)

We have considered these arguments based on the record and applicable legal

standards. We affirm.

I.

Proper consideration of the arguments raised in Points III and IV require

us to detail the complicated procedural history leading up to trial and provide

some general context for the charges.

On October 20, 2008, defendant was home alone with L.H. when he called

9-1-1 to report she had stopped breathing. Medical personnel later revived her,

but she ultimately passed away after being removed from life support. Police

5 A-4254-17T3
first interrogated defendant on the day of the incident (the October 2008

statement); they interviewed him again on May 7, 2009 (the May 2009

statement). The second interview took place after the autopsy report indicated

L.H. died from acute cervical trauma and aggravation of a congenital

intracerebral vascular malformation. Defendant admitted throwing the child on

the bed to stop her crying; L.H. then went silent, at which point defendant called

9-1-1.

Defendant was initially charged in a complaint/warrant with aggravated

manslaughter, N.J.S.A. 2C:11-4(b)(1). A grand jury indicted defendant in

December 2010, charging him with manslaughter and endangering. Defendant

challenged the admissibility of his two statements to law enforcement, and the

judge conducted a bifurcated evidentiary hearing. He suppressed the October

2008 statement, and the State sought leave to appeal. We denied that motion,

pending the judge's decision on the admissibility of the May 2009 statement. In

the interim, the State sought and obtained a superseding indictment that

additionally charged defendant with second-degree aggravated assault of L.H.,

N.J.S.A. 2C:12-1(b)(1), i.e., purposefully, knowingly or recklessly under

circumstances manifesting extreme indifference to human life, caused serious

bodily injury to L.H.

6 A-4254-17T3
 The judge held an evidentiary hearing on the May 2009 statement and

denied defendant's motion to suppress. We granted the State's motion for leave

to appeal the order suppressing the October 2008 statement; defendant did not

move to appeal the denial of his motion to suppress the May 2009 statement.

We reversed the order suppressing the October 2008 statement. State v.

Hubbard, A-2221-12 (App. Div. Oct. 11, 2013). In June 2015, the Supreme

Court reversed our judgment, reinstating the Law Division's order suppressing

the October 2008 statement. State v. Hubbard, 222 N.J. 249, 272 (2015). The

Court held the custodial interrogation leading to the October 2008 statement was

"conducted without administration of defendant's Miranda rights[.]" Ibid.

At the first status conference following the Court's remand, defendant

rejected the State's plea bargain offer, i.e., plead guilty to manslaughter with a

recommended five-year sentence subject to NERA. The next day, the prosecutor

wrote to defense counsel. He revoked the plea offer, declined extending another,

and indicated the State would present the matter to a third grand jury to address

the "inconsistent charges" in the existing indictment. The prosecutor's letter

implied this inconsistency was apparent from the culpable mental states required

to prove the crimes charged in the indictment: reckless manslaughter, knowing

or purposeful aggravated assault, and knowingly endangering the welfare of a

child.

7 A-4254-17T3
 In January 2016, a grand jury returned the superseding indictment on

which defendant was tried. The only difference from the second indictment was

the elevation of the first count from second-degree manslaughter to first-degree

aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1). The aggravated assault and

endangering counts remained the same. In June, the State tendered another plea

offer; in return for defendant's guilty plea to aggravated manslaughter, the

prosecutor would recommend a maximum sentence of ten years' imprisonment,

subject to NERA. Defendant rejected the offer and proceeded to trial.

Defendant argues the third grand jury presentation demonstrates

prosecutorial vindictiveness and punishment for defendant's successful defense

on interlocutory appeal. He also contends that the third presentation was flawed

by prosecutorial misconduct. Defendant urges us to reverse his conviction and

dismiss the indictment.

With limited exceptions that do not apply here, "objections based on

defects in the institution of the prosecution or in the indictment . . . must be

raised by motion before trial." R. 3:10-2(c). "[O]bjections alleging procedural

irregularities in the grand jury proceeding[s]" are included in the rule's purview.

Pressler & Verniero, Current N.J. Court Rules, cmt. 3.3 on R. 3:10-2 (2021).

Among other things, "[t]his rule governing the timing of the motion recognizes

the right of the State to cure any irregularity." State v. Simon, 421 N.J. Super.

8 A-4254-17T3
547, 551 (App. Div. 2011) (citing State v. Womack, 145 N.J. 576, 590 (1996);

State v. Hart, 139 N.J. Super. 565, 569 (App. Div. 1976)).

Defendant concedes no motion to dismiss the indictment was made in the

Law Division. As a result, we could refuse to consider these arguments raised

for the first time on appeal. State v. Branch, 301 N.J. Super. 307, 319 (App.

Div. 1997), rev'd in part on other grounds. 155 N.J. 317 (1998); State v. R.W.,

200 N.J. Super. 560, 572 (App. Div. 1985), mod. on other grounds., 104 N.J. 14

(1986); State v. Spano, 128 N.J. Super. 90, 92 (App. Div. 1973). Nevertheless,

for the sake of completeness, and because the State does not assert defendant's

failure to comply with Rule 3:10-2 bars our review, we briefly address the merits

of defendant's arguments.

"One of the guiding principles to be followed by a court when considering

a motion to dismiss an indictment is that 'a dismissal of an indictment is a

draconian remedy and should not be exercised except on the clearest and plainest

ground.'" State v. Zembreski, 445 N.J. Super. 412, 424–25 (App. Div. 2016)

(quoting State v. Williams, 441 N.J. Super. 266, 271 (App. Div. 2015)). "As

there is no prohibition against a prosecutor seeking a superseding indictment

before trial, an indictment is not 'deficient' or 'defective' because it is amended

9 A-4254-17T3
to include a new charge." Id. at 425 (citing State v. Bauman, 298 N.J. Super.

176, 205 (App. Div. 1997)).3

"[A]bsent a showing of 'vindictiveness' — meaning 'the prosecutor's

action was solely [in] retaliation . . . for [defendant's] exercise of a legal right'

— a superseding indictment will not be disturbed." Ibid. (second and third

alterations in original) (quoting State v. Gomez, 341 N.J. Super. 560, 575 (App.

Div. 2001)); see also Shaw, 241 N.J. at 240 ("Prosecutorial vindictiveness in the

indictment process may also run afoul of due process and warrant court

intervention." (citing Blackledge v. Perry, 417 U.S. 21, 28 (1974); Gomez, 341

N.J. Super. at 571–72)). In Gomez, we held that

although there is an opportunity for prosecutorial
vindictiveness in the pretrial stage, it is insufficient to
justify a presumption of vindictiveness for the pretrial
action of adding or substituting charges. The
overwhelming weight of authority . . . restrict[s]
application of the presumption to posttrial prosecutorial
actions.

[341 N.J. Super. at 574 (citing Blackledge, 417 U.S. at
27).]

Here, the third indictment preceded trial, and no presumption of

vindictiveness applies to the elevation of count one to aggravated manslaughter.

3
In State v. Shaw, 241 N.J. 223, 243 (2020), the Court exercised its supervisory
power and held that in the absence of additional evidence, a prosecutor may not
seek an indictment after two grand jury no bills without advance approval from
the vicinage Assignment Judge.
10 A-4254-17T3
We acknowledge defendant's argument that the prosecutor's stated purpose in

re-presenting the case — to rectify "inconsistent charges" in the existing

indictment — lacks credence. Aggravated manslaughter, like manslaughter,

requires proof of reckless conduct. Additionally, one may recklessly commit an

aggravated assault under N.J.S.A. 2C:12-1(b)(1); the conduct need not be

purposeful or knowing.

However, we have been provided with the grand jury transcripts from all

three grand jury presentations. In 2016, the prosecutor submitted the charge of

knowing, purposeful murder for the grand jurors' consideration. In other words,

the State's presentation sought an indictment on a charge that required a

purposeful or knowing mental state; that the grand jury chose not to return an

indictment for murder does not demonstrate the prosecutor's stated purpose was

a ruse or his motive vindictive.

Perhaps more importantly, the evidence presented to secure the 2010

indictment was limited to less than fourteen pages of testimony from Sergeant

Alexis Sheftall, the investigating officer from the Cumberland County

Prosecutor's Office, and sparked a single question from the panel. The sergeant's

testimony was even shorter in 2012, and provoked no questions from the panel.

In 2016, the officer's testimony was more extensive, nearly twice as many pages

in the transcript, and referenced the findings of a third medical consultant, a

11 A-4254-17T3
"child patholog[ist]," never mentioned in the earlier grand jury presentations.

Members of the grand jury repeatedly asked questions after Sergeant Sheftall

testified. In short, no presumption of vindictiveness applies to the third grand

jury presentation, and defendant failed to demonstrate that it was "solely [in]

retaliation" for defendant's successful appeal to the Court. Gomez, 341 N.J.

Super. at 575.

We also reject the arguments defendant makes in Point IV. Essentially,

he contends the prosecutor presented evidence to the grand jury about pre-

existing, healing injuries found on L.H. at autopsy without advising the panel

that defendant was not charged with having caused those injuries or the

congenital vascular malformation. He objects to the sergeant characterizing the

opinion of a medical expert that the force necessary to produce the spinal injuries

to L.H. was equal to a fall from several stories. Lastly, he argues the prosecutor's

instructions to the grand jury were misleading and inadequate. Combined,

defendant contends the presentation was a "subversion of the grand jury

process." We disagree.

Rule 3:10-2's requirement that a motion to dismiss an indictment be made

before trial also "allows preservation of the issue because a guilty verdict is

universally considered to render error in the grand jury process harmless."

Simon, 421 N.J. Super. at 551–52 (citing State v. Lee, 211 N.J. Super 590, 599

12 A-4254-17T3
(App. Div. 1986)). This general principle makes defendant's claims of alleged

errors in the third presentation harmless errors if errors at all. As we said in

State v. Warmburn, "a subsequent finding of guilty by a properly instructed jury

'represents a finding beyond a reasonable doubt that defendant[] w[as] guilty of

the offense. Thus, even if the grand jury instructions were erroneous, the error

was rendered harmless by the subsequent guilty verdict.'" 277 N.J. Super 51, 60

(App. Div. 1994) (alterations in original) (quoting State v. Ball, 268 N.J. Super.

72, 120 (App. Div. 1993)); see also State v. Cook, 330 N.J. Super. 395, 411

(App. Div. 2000) (applying same principle to failure to provide grand jury with

alleged exculpatory evidence).

Here, defendant's assertions of misconduct in the presentation of evidence

or legal instructions to the third grand jury panel are harmless errors in light of

the jury's verdict after trial and compel neither reversal nor dismissal of the

indictment.

II.

In Point I, defendant contends the motion judge erred by ruling the May

2009 statement was admissible at trial. He argues in Point II that the State

elicited testimony during trial about the October 2008 statement, which the

Court suppressed.

13 A-4254-17T3
 As already noted, the officers did not administer Miranda warnings to

defendant in October 2008; they did administer warnings to him prior to the

interrogation that produced the May 2009 statement. At the evidentiary hearing

on that statement, the motion judge considered the testimony of Sergeant

Sheftall and Detective Travaline, who interrogated defendant, and saw the video

recording of the May 2009 interrogation.

Following the hearing, the judge rendered a comprehensive oral decision.

He specifically considered the evidence in light of State v. O'Neill, 193 N.J. 148

(2007). There, the Court considered the effect of pre-warning custodial

interrogation on a defendant's subsequent post-warning waiver of rights and the

statement made thereafter, the so-called "two-step, 'question-first, warn-later'

interrogation . . . technique[.]" Id. at 180. The Court held:

[W]hen Miranda warnings are given after a custodial
interrogation has already produced incriminating
statements, the admissibility of post-warning
statements will turn on whether the warnings
functioned effectively in providing the defendant the
ability to exercise his state law privilege against self-
incrimination . . . . [C]ourts should consider all relevant
factors, including: (1) the extent of questioning and the
nature of any admissions made by defendant before
being informed of his Miranda rights; (2) the proximity
in time and place between the pre- and post-warning
questioning; (3) whether the same law enforcement
officers conducted both the unwarned and warned
interrogations; (4) whether the officers informed
defendant that his pre-warning statements could not be
used against him; and (5) the degree to which the post-
14 A-4254-17T3
 warning questioning is a continuation of the pre-
warning questioning. The factual circumstances in
each case will determine the appropriate weight to be
accorded to any factor or group of factors.

....

We emphasize that we are not pronouncing a
bright-line rule. For example, if the officers' pre-
warning questioning is brief and the defendant's
admissions are not incriminating or are barely
incriminating[,] and if there is a substantial break in
time and circumstances between the pre- and post-
warning interrogations, then those factors would
militate against suppression of the defendant's
statements.

[Id. at 180–81 (second emphasis added).]

The motion judge found both officers credible. He noted the May 2009

interrogation took place 199 days after the unwarned October 2008

interrogation. The officers only questioned defendant again "after . . . receiving

scientific evidence that caused them to be suspicious." The judge determined

there was no "single, un-warned sequence of questioning." The judge further

found that defendant's first, now suppressed, statement was not incriminatory

and contained "very little . . . that could be utilized as direct evidence in this

prosecution." Lastly, the judge rejected any contention that the statement was

the product of coercion or the overbearing of defendant's free will.

15 A-4254-17T3
 Defendant contends the judge misapplied O'Neill, and the officers' use of

deceptive and aggressive questioning techniques effectively "diluted" the

Miranda warnings. We disagree.

We "must defer to the factual findings of the trial court when that court

has made its findings based on the testimonial and documentary evidence

presented at an evidentiary hearing or trial." Hubbard, 222 N.J. at 269. "An

appellate court owes no deference, however, to 'conclusions of law made by

lower courts in suppression decisions,' which are reviewed de novo." State v.

A.M., 237 N.J. 384, 396 (2019) (quoting State v. Boone, 232 N.J. 417, 426

(2017)).

The judge considered the factors enunciated in O'Neill and properly

applied them to the factual findings he made. Considering the language from

O'Neill we highlighted above, it is beyond cavil that defendant's first statement

was "barely incriminating" and there was "a substantial break in time and

circumstances" between the two statements. 193 N.J. at 181. Although

Detective Travaline was present during both interviews, the judge found, and

the video corroborates, that a different officer, Sergeant Sheftall, primarily

conducted the second interrogation. The contention that the judge misapplied

O'Neill warrants no further discussion. R. 2:11-3(e)(2).

16 A-4254-17T3
 As to the voluntariness of the statement, the State bears the burden of

proving beyond a reasonable doubt that defendant's statement was the result of

a voluntary waiver of his rights and "that the police did not overbear the will of

the defendant." State v. Hreha, 217 N.J. 368, 383 (2014) (citing State v.

Galloway, 133 N.J. 631, 654 (1993)). "Determining whether the State has met

that burden requires a court to assess 'the totality of the circumstances, including

both the characteristics of the defendant and the nature of the interrogation. '"

Ibid. (quoting Galloway, 133 N.J. at 654).

Defendant cites State v. Patton, where we held, "[T]he fabrication of

evidence by police to elicit a confession and admission of that evidence at trial,

violates due process, and any resulting confession is per se inadmissible." 362

N.J. Super. 16, 46 (App. Div. 2003). Here, the investigators did not fabricate

physical evidence and show it to defendant to compel incriminatory statements.

During the questioning, they displayed the actual autopsy report, not fabricated

evidence.

Defendant cites to State v. L.H., where the interrogating officers

constantly promised "'help' and 'counseling'" for the defendant, and that he

would "stay out of jail" and see his daughter if he told the truth, despite the

defendant's reluctance to "giv[e] up the right to remain silent[,]" 239 N.J. 22,

31, 33 (2019). After considering the totality of circumstances surrounding the

17 A-4254-17T3
interrogation, the Court affirmed our judgment "that the detectives secured an

involuntary confession." Id. at 52.

The motion judge, who saw the same videorecording that we have viewed,

concluded the State proved beyond a reasonable doubt that defendant's May

2009 statement was not the product of coercion or otherwise resulted from the

interrogating officers' deception that overbore defendant's free will. The very

limited citations defendant makes to the transcript of the May 2009 interrogation

demonstrate its qualitative difference from the techniques the Court found

constitutionally deficient in L.H. and cases cited therein. 4

In Point II, defendant claims the prosecutor's questioning of Sergeant

Sheftall before the jury as she introduced the recording of the May 2009

statement, implicated the existence and contents of defendant's October 2008

statement, now suppressed. The prosecutor asked Sheftall if at the beginning of

the May 2009 interview, did defendant "repeat . . . the information that he had

4
Defendant also argues that the jury saw a very brief portion of the interrogation
in which the officers permitted a worker from the Division of Youth and Family
Services (DYFS) into the room. She posed several questions to defendant.
Defendant contends this "fatally diluted" the Miranda warnings, because the
DYFS worker said she was only involved in the "civil part" of the investigation.
The argument was not specifically raised below, nor was there a specific
objection to this portion of the video being played for the jury. In any event, we
reject defendant's claim that this transformed an otherwise voluntary statement
into one requiring suppression. Moreover, defendant's answers to the questions
posed by the worker were not incriminatory.
18 A-4254-17T3
provided back in October of 2008." After an objection and sidebar, the judge

ordered the prosecutor to rephrase the question. The prosecutor asked:

"Detective, at the beginning of the interview in May did the [d]efendant tell you

that he was home with his daughter on October 20th?" Defendant's argument is

meritless and warrants no further discussion. R. 2:11-3(e)(2).

III.

Defendant's remaining arguments center on alleged errors made by the

trial judge in his evidentiary and legal rulings. Immediately before trial, the

State indicated its intention to introduce evidence that L.H.'s mother took her

for medical attention one month before her death. The doctor diagnosed L.H.

with a fractured clavicle; the autopsy revealed L.H. had other healing injuries.

Defendant objected to introduction of any evidence of these other injuries as

evidence of uncharged bad acts. See N.J.R.E. 404(b). The judge conducted a

Cofield5 analysis and excluded the evidence "because it's so bad and so

prejudicial to the defendant[.]" However, the judge ruled that if defendant

asserted the injuries were because of an "accident[,]" then "he opens the door"

and "it's going to have to come in[.]" Defendant did not testify or present any

witnesses at trial. He now contends the judge's in limine ruling denied him the

right to present a defense.

5
State v. Cofield, 127 N.J. 328, 338 (1992).
19 A-4254-17T3
 Without doubt, "[e]vidence of prior episodes of child abuse unconnected

with the direct cause of the child's death [is] admissible as proof of absence of

accident or mistake." State v. Moorman, 286 N.J. Super. 648, 660 (App. Div.

1996) (citing State v. Wright, 66 N.J. 466, 468 (1975), rev'g on dissent, 132 N.J.

Super. 130, 148 (App. Div. 1974) (Allcorn, J.A.D., dissenting)). "[A] trial court

may, in its discretion, await the conclusion of the defendant's case before

deciding the admissibility of 404(b) evidence to prove intent, or lack of

mistake." State v. Cordero, 438 N.J. Super. 472, 486 (App. Div. 2014). While

"[a] defendant's right to testify in his or her own defense is an essential element

of due process[,] . . . whether to testify is a 'strategic or tactical decision to be

made by a defendant with the advi[c]e of . . . counsel.'" Id. at 488 (third

alteration in original) (citation omitted) (quoting State v. Bogus, 223 N.J. Super.

409, 423 (App. Div. 1988)). Accordingly, we reject defendant's argument.

Defendant contends Sergeant Sheftall was permitted to express her

opinion about whether defendant was truthful while giving his May 2009

statement. He cites several snippets of the testimony. Having reviewed them in

light of the totality of the sergeant's testimony, the complete video of defendant's

statement, and the State's other evidence, any error was harmless beyond a

reasonable doubt. See State v. Kemp, 195 N.J. 136, 157 (2008) (rejecting a

similar claim and holding that admission of detective's "testimony in respect of

20 A-4254-17T3
his skepticism concerning defendant's explanation was [not] 'sufficient to raise

a reasonable doubt as to whether the error led the jury to a result that it otherwise

might not have reached.'" (quoting State v. Feal, 194 N.J. 293, 312 (2008))).

During her testimony, one of the State's medical experts mentioned L.H.'s

fractured clavicle. There was no objection. Defendant claims this fleeting

reference was plain error requiring reversal. The argument lacks sufficient merit

to warrant discussion. R. 2:11-3(e)(2).

Defendant contends the jury verdict was inconsistent, the judge erred by

not sua sponte charging simple assault as a lesser-included offense of

manslaughter and aggravated manslaughter, and the verdict sheet was confusing

and misleading because it did not include simple assault as an alternative to the

homicide offenses. None of these arguments merit reversal.

The medical evidence at trial revealed that L.H.'s congenital vascular

malformation could have eventually been fatal, and the baby's general

crankiness shortly before the fatal incident may have evidenced the beginning

of the malformation's hemorrhaging. In other words, defendant argues the issue

of causation was front and center for the jury to decide, and, the guilty verdict

on simple assault, i.e., that he only caused bodily injury to L.H., is inconsistent

with the manslaughter verdict, which required proof beyond a reasonable doubt

that his conduct caused injuries resulting in L.H.'s death.

21 A-4254-17T3
 It is well-settled that "[w]e . . . must resist the temptation to speculate on

how the jury arrived at a verdict." State v. Goodwin, 224 N.J. 102, 116 (2016)

(citing State v. Banko, 182 N.J. 44, 53 (2004)). "Rather, 'we determine whether

the evidence in the record was sufficient to support a conviction on any count

on which the jury found the defendant guilty.'" Ibid. (quoting State v.

Muhammad, 182 N.J. 551, 578 (2005)). Here, the evidence clearly supported

the jury's guilty verdict as to manslaughter and simple assault.

Defendant never asked the judge to charge simple assault as a lesser

included offense of aggravated or reckless manslaughter. "No defendant should

be convicted of a greater crime or acquitted merely because the jury was

precluded from considering a lesser offense that is clearly indicated in the

record." State v. Garron, 177 N.J. 147, 180 (2003). In the absence of a party's

request or objection, however, the evidence in the record must clearly indicate

the need to provide the unrequested charge. State v. Alexander, 233 N.J. 132,

143 (2018).

Generally, a jury should be "instructed properly on the law and on all

clearly indicated lesser-included offenses, even if at odds with the strategic

considerations of counsel." Garron, 177 N.J. at 180. A court may depart from

this requirement when to do otherwise would "cause complete surprise, or [be]

so inconsistent with the defense as to undermine the fairness of the

22 A-4254-17T3
proceedings[.]" Id. at 181. In State v. Doss, we found no plain error in failing

to give a charge on a lesser-included offense where it was inconsistent with the

defense strategy, and the jury was provided with another lesser-degree offense

for its consideration. 310 N.J. Super. 450, 455–56 (App. Div. 1998).

Obviously, as noted, the evidence supported the guilty verdict of simple

assault, for which the judge provided instructions as a lesser-included offense

of aggravated assault, a separate count in the indictment. Defendant's strategy

at trial was to argue his conduct, throwing L.H. onto the bed, was not reckless

at all, and, even if it was, the conduct did not cause L.H.'s death. Defendant

urged the jury to find his conduct caused no injuries to L.H., and her death was

caused by the congenital vascular malformation. As far as the homicide count

was concerned, defendant's strategy sought an outright acquittal. By convicting

defendant of reckless manslaughter, the jury rejected the lack of causation

argument.

To be sure, the presence of the aggravated assault count makes this case

particularly unique. It provided the jury with the option of acquitting defendant

of the greater charge, homicide, and finding him guilty of a lesser-included

offense, i.e., two different degrees of aggravated assault or simple assault. We

do not see the lack of instructions on these varying degrees of assault as

presenting this jury with the disfavored "all or nothing choice," the evil which

23 A-4254-17T3
the Court in Garron and other cases sought to avoid. In short, failing to provide

a charge on aggravated or simple assault within the instructions on aggravated

manslaughter and manslaughter was not plain error.

It follows that based on our reasoning, there was not cumulative error

requiring reversal. Lastly, in Point XI, defendant reiterates all these contentions

as a basis to find trial counsel provided ineffective assistance. We reject the

argument since counsel's failure to raise losing arguments in the Law Division

cannot evidence deficient performance. State v. Echols, 199 N.J. 344, 361

(2009). We do not preclude defendant raising other claims of ineffective

assistance of counsel in a timely PCR petition if he chooses, but if these specific

claims of ineffective assistance are raised anew, the PCR court should consider

them procedurally barred pursuant to Rule 3:22-5.

Affirmed.

24 A-4254-17T3